HENI WAHYUNINGTIAS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION

HCAL 905/2019

[2022] HKCFI 907

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 905 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;     or
	consideration of documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.     The applicant applies for leave to apply for judicial review of the Decision dated 15 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2.     The applicant had appeared before the Court.

3.     Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.     The applicant is a national of Indonesia.  She entered Hong Kong on 22 November 2012 as a foreign domestic helper.  However, her employment contract was terminated prematurely on 8 April 2014.  She did not depart and had overstayed since 23 April 2014.  On 14 September 2017, she was arrested by the Immigration Department.  On 18 September 2017, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by Mr. Irawan, her loan shark.

5.     According to the applicant, she borrowed 40 million Indonesian Rupiah from the loan shark in 2010.  She claimed that the loan agreement was signed by her parents and she did not know the details.  She only paid installments for three months and was unable to afford the future payments because she lost her job in Hong Kong.  The applicant had encountered two incidents with the loan shark and his bodyguards, during one of which she was hit with broomstick, resulting in injuries.  The loan shark also attacked her parents for her whereabouts when she escaped to her relatives in around 2011.  Out of fear, she fled to Hong Kong and stayed for protection.  Details of her claim were set out at paragraph 8 of the Notice of Decision dated 27 July 2018 by the Director (“the Director’s Decision”) and paragraph 18 of the Board’s Decision as described below.

The Director’s Decision

6.     The Director considered the applicant’s claim in relation to the following risks:

a.     risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.     risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

c.     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.     risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.     By way of the Director’s Decision, the Director refused the applicant’s claim.  The Director refused to believe that she would be harmed or killed by the loan shark upon refoulement because (i) the low frequency and severity of the past ill-treatments indicated an unlikelihood of future risk of harm [13]; (ii) state protection would be available to her [14]; and (iii) internal relocation would be a viable option for her [15]. 

The Board’s Decision

8.     The applicant appealed the Director’s Decision to the Board.  On 25 February 2019, the applicant attended the scheduled oral hearing before the Board.

9.     Having considered the applicant’s evidence and sought clarifications to the material aspects of her claim, the Board found that her claim had no merits.  It found that (1) the applicant was not inflicted with serious harm; (2) she provided contradictory accounts on the reason of the loan; (3) she only came to Hong Kong to seek employment but not protection; and (4) the late lodge of non-refoulement claim only after she was arrested showed that she had no intention to seek protection [21]. 

10.     Further, the Board found that the country of origin information supported the conclusion that state protection was available [25].  In assessing the individual ground, the Board found that there was no state involvement [27]; that the applicant had failed to establish a personal or real risk of being arbitrarily deprived of her life which would violate BOR2 risk [28]; that she only sustained minor injuries [34] and that internal relocation was viable [39]-[41].

11.     Thus, the Board rejected the applicant’s claim and dismissed her appeal.   

Application for leave to apply for judicial review of the Board’s Decision

12.     The applicant has filed Form 86 dated 2 April 2019 for leave to apply for judicial review of the Board’s Decision.

13.     In her affirmation in support of her application, the applicant set out the following grounds:

(1)     she was not provided with legal assistance for the appeal hearing before the Board;

(2)     the hearing bundle for her appeal was only given to her just a few days before the hearing; the contents were in English and there was insufficient time for her preparation for the hearing and there was no interpreter who could assist her;

(3)     the Board did not notify her by phone despite her prior request;

(4)     she was therefore confused at the hearing;

(5)     the Board had relied upon the source of news that is not officially recognized or it is simply hearsay or on outdated authorities resulting in it making groundless speculations;

(6)     BOR2 risk was assessed without screening by the Immigration Department; and

(7)     the Director or the adjudicator made their decisions without proper inquiry or carefully understanding her situation and they should tour her country to understand her situation.

DISCUSSION

14.     The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.     The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said she had nothing to add to her evidence in her affirmation.

16.     In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

17.     The grounds under paragraph 12 above do not advance her application.

18.     Ground (1) fails because the Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 held that the applicant is not entitled to free legal representation at every stage of the proceedings as she had already had duty lawyer’s service at the screening stage [22].

19.     Ground (2) and Ground (4) fail as she could have told the Board that she did not have sufficient time for her preparation for the hearing. On record, there was no such application. On the face of the Board’s Decision, there was no evidence to show that she was unable to understand the hearing. The Board was able to find the facts through questioning and answers from the applicant. As to interpreter service, the Court of Appeal held in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 held:

“18. … … Either the applicant is himself conversant with the English language or he has access to language assistance of his own if he deemed necessary. Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.”

20.     Ground (3) fails as the Board has no obligation to inform her of its Decision being available by phone. The Board did send its Decision to her at her last known address.

21.     Ground (5) fails as it is only her opinion without any evidence in support.

22.     Ground (6) fails because under the Ordinance, the immigration officer will interview the applicant for clarifying the facts, which had been done for her other claims. It is unnecessary to have another interview with her since she relies on the same facts for her other claims.

23.     Ground (7) fails as the Director or the adjudicator can rely upon the country of origin information compiled by other countries for the various situations of her country. It is unnecessary for the Director or the adjudicator to visit her country for this purpose.

24.     The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

25.     The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

26.     I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1